The Peoples’ Constitution: Brett Kavanaugh and the Next Supreme Court

By Benedict Lenhart

President Trump nominated federal judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court. His nomination shines a bright light on a number of “hot” constitutional issues. Many news stories claim that Kavanaugh will fundamentally change the court’s position on key issues facing America. While steering clear of politics (a goal of this column), we try to separate fact from fiction on three important areas where Kavanaugh could have a direct impact.

Affirmative Action

For more than 40 years American courts have allowed various forms of affirmative action in schools. In particular, schools have been allowed to use race as a factor in admissions to foster diversity or address prior discrimination. A sharply divided Supreme Court has struggled with the issue, with some justices arguing that affirmative action is needed to address the long record of past discrimination, while others argue (A) it harms the very minorities it is trying to help, and (B) it violates the 14th Amendment’s ban on racial discrimination. Among the latter, Justice Clarence Thomas (currently the sole African American Justice) is strongly opposed to affirmative action, arguing in the Adarandcase that “so-called ‘benign’ discrimination teaches many that because of chronic and apparently immutable handicaps, minorities can’t compete with them without their patronizing indulgence.”

In the 2016 case of Fisher v. University of Texas—the court’s most recent affirmative action ruling—Kennedy wrote the majority opinion (4 to 3) upholding the school’s program of taking race into account as one among many factors in admissions decisions. Three justices dissented and would have found the program unconstitutional.  (There were only seven justices on the case because Justice Antonin Scalia had passed away prior to the ruling, and Justice Elena Kagan recused herself).

Here is where it gets interesting. Subtract Kennedy (now retired) and add Kagan and you have four justices who would presumably support affirmative action in some cases. Justices Thomas, Roberts and Alito voted against affirmative action in Fisher, and Justice Neil Gorsuch is expected to side with them on the issue (although no one knows for sure how he would vote). That leaves a 4-4 split on affirmative action, with Kavanaugh potentially the tie breaker. Kavanaugh’s position on affirmative action is unclear; his judicial record to date provides no decisive answer, but it is plain that Kavanaugh could have a pivotal vote in future affirmative action cases, just as his predecessor, Justice Kennedy, often did.


In Kavanaugh’s nomination debate, no issue gets more attention than abortion. Since Roe v. Wadein 1973, the Supreme Court has protected the basic right to abortion while allowing a number of significant restrictions on the abortion process. [For a deeper look at Roe v. Wade, see the March, 2018 column available at]

Will Kavanaugh cause the court to fundamentally change its position on abortion? Recent abortion cases, such as the 2016 case of Hellerstedthelp answer the question. There, Texas required doctors performing abortions to have admitting privileges at nearby hospitals and required abortion clinics to have facilities comparable to surgical centers. Ruling 5 to 3, the court found the law unconstitutional because it placed too much burden on abortion access.

Kennedy was in the five member majority, and Justice Gorsuch had not yet joined the court. Kennedy is now gone, and the three dissenters—who voted to uphold the Texas law—are still on the court. If Gorsuch and Kavanaugh side with the dissenters (possible but not certain) that would create a 5 to 4 majority for the former dissenters, suggesting that the outcome in cases such as Hellerstedtcould be reversed.  However, while some justices (including, potentially, Kavanaugh) may be willing to allow further restrictions on abortion, that is quite different from overruling the basic right to abortion itself, which has been supported by numerous court rulings over more than 40 years since Roe. As a general rule, the court is reluctant to overturn such longstanding precedent, although occasionally it has done so when the prior ruling was clearly wrong—Brown v. Board of Educationbeing one clear example.

In trying to predict Kavanaugh’s stance on abortion, many point to his dissent in the 2017 case of Garza v. Hardeninvolving an undocumented minor who was in government custody and who wanted and abortion. The government wanted to place the minor with a sponsor prior to any abortion decision. The majority of the DC Circuit sided with the minor, and said the government could not block her abortion.  Kavanaugh’s dissent argued that the Constitution was not violated either by allowing the government to place the minor with a sponsor prior to any abortion, or by the delay caused by such placement. Kavanaugh stated that: “the Government has permissible interests in favoring fetal life, protecting the best interests of the minor, and not facilitating abortion, so long as the Government does not impose an undue burden on the abortion decision.”

Some read this to mean that Kavanaugh would allow substantial restrictions on abortion, or even overturn Roe. However, the unusual facts of Garzadon’t clearly tell us how a “Justice Kavanaugh” would vote on abortion cases more generally, which are often very dependent on the unique facts of each case. What is clear, however, is that given the new “math” on the Supreme Court—subtracting Kennedy and adding Kavanaugh—future Supreme Court votes on abortion will be less predictable than before Kennedy’s departure.

Presidential Power and the Mueller Investigation

If Kavanaugh replaces Kennedy on the court, will that change the court’s stance on the scope of presidential power in general, and on the Mueller probe in particular?  To answer this, some have pointed to a 2009 article where Kavanaugh argued that Congress should pass a law shielding the president from lawsuits or investigations while is in office (but not afterward). Specifically, Kavanaugh wrote that he favored a law “exempting a president—while in office—from criminal prosecution or investigation, including questioning by criminal prosecutors or defense counsel.” Presumably, this would mean that Mueller investigation would be postponed while President Trump is in office, or at least the investigation could not involve or focus on the president during that period.

Such a law, if passed, would expand presidential power by removing a “check and balance” on the president, although impeachment would remain unchanged, since Congress lacks authority to alter the impeachment process spelled out in the Constitution. Such a law, if applied to the Mueller probe, would plainly benefit Trump by removing a pending investigation into his conduct.

Does that mean that “Justice Kavanaugh” would rule for Trump on these issues?   Here is the key point: Kavanaugh said it would be wise for Congress to pass a law giving these protections to the president—he did not say that the Constitution required such protections or that the court should grant such protections absent a law passed by Congress. And indeed he acknowledged the key case of Clinton v Jones—where the court unanimously held that President Clinton was not exempt from a civil suit against him by Paula Jones—saying the case “may well have been entirely correct.”   Kavanaugh is also surely aware of U.S. vs Nixonwhere the court unanimously ruled the President Nixon must comply with a subpoena from a special prosecutor seeking Nixon’s tapes.

In short, while there are suggestions that Kavanaugh holds strong views of presidential power, his writings to date don’t show that he would refuse to follow key cases like Clinton v. Jonesand U.S. v. Nixon, both of which limit presidential power.  And those cases suggest that, absent a new law passed by Congress, nothing in the Constitution prevents the Mueller investigation from contininuing.


The only certain point about Kavanaugh’s impact on the Supreme Court is that, if confirmed, he would replace Justice Kennedy. By replacing a justice who had such a pivotal role on the court—often as the key swing vote—Kavanaugh (or any Kennedy replacement) can hardly avoid being smack in the middle of the most controversial cases facing the court in the future.

Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.


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